Surendra Kumar Jain vs Raj Kumar i and Others

S.K. Chawla, J.

The order under challenge in this revision by an accused is an order by Additional Sessions Judge u/s 398, Criminal Procedure Code setting aside order of discharge recorded by Chief Judicial Magistrate and directing further inquiry.

A complaint was filed by non-applicant No. 1, Rajkumari in the Court of C.J.M., Vidisha, on 1-2-1984, alleging that she was legally married wife of petitioner Surendra Kumar Jain, but the latter despite that marriage had contracted a second marriage with one Sudha Jain on 22-11-1983. The petitioner had thus committed the offence of bigamy u/s 494, Indian Penal Code and his parents and brother, second wife Sudha Jain and her father had abetted the offence of bigamy u/s 494/109, Indian Penal Code. As many as six accused persons were impleaded in that complaint. The learned C.J.M. after recording the evidence of the complainant and her witnesses u/s 244, Criminal Procedure Code passed an order on 24-12-1986 u/s 245(1) ibid, discharging all the accused persons of the offences alleged against them. Aggrieved by that order, non-applicant No. 1, Rajkumari went in revision to the Court of Session, Vidisha. The Third Additional Sessions Judge, Vidisha on 1-10-1990 passed an order setting aside the said order of discharge and sending back the case to C.J.M., Vidisha, for further inquiry, observing that it was improper to have discharged accused persons and further observing that offence u/s 498A, Indian Penal Code was also disclosed from the evidence and directing that it might be considered, if charge under that offence too deserved to be framed against accused Nos. 1 to 3, i.e., the petitioner and his parents. It is that order which is under challenge in this revision. The petitioner is only one of the accused persons whose order of discharge was set aside by the Additional Sessions Judge. Yet, he alone has brought this revision, in which the complainant has been impleaded as one of the non-applicants i.e., N.A. 1 and the petitioner''s own parents as non-applicants 2 and 3. The other discharged accused persons do not figure anywhere in the array of the parties.

It was urged in support of this revision that evidence of the complainant Rajkumari and her witnesses was such that, even if unrebutted, it did not warrant conviction of the accused persons and the learned Chief Judicial Magistrate u/s 245(1), Criminal Procedure Code had therefore properly discharged the accused persons. At all events, the learned Additional Sessions Judge should not have lightly interfered with C.J.M.''s order, unless manifest illegality or gross miscarriage of justice was done by that order. Even the alleged offence u/s 498A, Indian Penal Code could not have been considered for framing charge against accused Nos. 1 to 3, i.e., the petitioner and his parents, for the simple reason that the said offence was for the first time brought on the statute book in the year 1983 by Act No. 46 of 1983 and it could not have been applied retrospectively for alleged past acts of cruelty committed by these accused persons before 1983.

There is no doubt that a part of the impugned order of Additional Sessions Judge, inasmuch as it directed considering the question, if charge of the offence u/s 498A, Indian Penal Code was made out against accused persons, was clearly unsupportable. It is stated in the complaint itself (in paragraph 10 thereof) that the complainant was last taken to her parental house in Bhopal by the petitioner (her husband) on 29-9-1979 and since then the complainant has been living in the parental house and was not taken back to her matrimonial house. Complainant Rajkumari (P.W. 1) in her evidence also deposed (in para 13 of her evidence) that she was living in her parental house since the year 1979. The alleged cruelty by the accused persons could therefore be practised, if at all, only in the year 1979 or before that. But the act of subjecting a married woman to cruelty on the part of her husband or husband''s relatives came to be made independently an offence only in the year 1983, when Section 498A, Indian Penal Code was enacted. Section 498A, Indian Penal Code did not, and in view of prohibition contained in Article 20(1) of the Constitution of India, could not, create the offence with retrospective effect. Hence Section 498A, Indian Penal Code could not have been applied to alleged acts of cruelty committed in the year 1979 or before that. As such, the impugned order of the Additional Sessions Judge in so far as he directed consideration of the question whether a charge could be framed against any accused person u/s 498A, Indian Penal Code, was clearly wrong.

With regard to the alleged offence of bigamy and its abetment, it is to be seen that complainant Rajkumari examined herself and only two witnesses; namely, Ramesh Jain and Girdharilal in evidence before charge. The order-sheet dated 6-9-1986 of the trial Court shows that the complainant expressly declared after examination of the aforesaid witnesses, that her evidence before charge was over. Coming to the aforesaid evidence before charge, complainant Rajkumari (P.W. 1) deposed about her own marriage to the petitioner and said that it had taken place on 17-6-1978. She had however only hearsay knowledge about alleged second marriage between the petitioner and accused Sudha Jain. Girdharilal (P.W.3) was her father. He also deposed about marriage between the petitioner and the complainant, his daughter. He too admitted that he got hearsay knowledge that the petitioner had contracted a second marriage with accused Sudha Jain. The only witness left was Ramesh Chand Jain (P.W. 2), who is a shop-keeper in Vidisha. This witness deposed that occasionally he also acted as a priest and performed marriages. He deposed that on 22-11-1983, acting as a priest, he had performed the marriage between petitioner and Sudha Jain. In cross examination this witness admitted that he used to record the names of bride and bridegroom upon a paper whenever he performed a marriage. He also stated that he thereafter used to tear off that paper. He admitted that he had prepared a paper showing the alleged marriage between the petitioner and Sudha Jain, but had torn off that paper too, as was his wont. He did not remember how many people had come in the Barat on the occasion of the said marriage. He also did not know where the Barat had stayed. Five to six persons were present at the time of Bhawars. It will thus be seen that in his evidence this witness was conspicuously silent about ceremonies that were performed at the time of the alleged marriage between the petitioner and Sudha Jain and was silent particularly on the question whether Saptapadi was performed. The only thing which appeared in his evidence, and that too in cross-examination was that five to six people were present at the time of "Bhawars". Could it be said on this basis that Saptapadi was performed? The learned C.J.M. in the order of discharge observed that the evidence of Ramesh Chand Jain was not worth attaching credence and, at any rate, it did not establish that the petitioner had gone through essential ceremonies of marriage at the time of alleged second marriage. It was necessary for the complainant to have proved strictly both the marriages as a fact. Both the marriages, and particularly the second marriage, were not strictly proved. The said evidence was not such that, even if unrebutted, it warranted conviction of the accused persons. On this reasoning the learned C.J.M. discharged all the accused persons.

The question is, if the learned C.J.M. applied proper test in discharging the accused persons. It must be said that the question whether an accused should be charged arises in three situations. Firstly, it arises in Sessions Trials. Secondly, it arises in warrant cases instituted on police report. In both the situations, the Court considering the question about framing of charge, does not have the occasion to record any evidence itself till that stage. Thirdly, the question about framing of charge also arises in warrant cases instituted otherwise than on police report. In this third situation, the Court is required to record all such evidence as may be produced in support of the prosecution. This will be clear from the language of Section 244(1) of the Criminal Procedure Code, 1973.

In the first situation, the Court is required to discharge the accused, if it "considers that there is not sufficient ground for proceeding against the accused", vide Section 227, Criminal Procedure Code. In the second situation, obligation to discharge the accused u/s 239, Criminal Procedure Code arises, when "the Magistrate considers the charge against the accused to be groundless". But power to discharge in the third situation is exercisable u/s 245, Criminal Procedure Code, when "the Magistrate considers, for reasons to be recorded, that no case against accused has been made out, which, if unrebutted, would warrant his conviction...."

Shri V.G. Khot, learned counsel for the petitioner, in a bid to support the order of discharge passed by the Chief Judicial Magistrate u/s 245(1), argued that prima facie case test which is applied in considering the question whether a charge should be framed in a Sessions case or warrant case instituted on a police report, cannot be applied to a warrant case instituted on complaint. In such a case the Magistrate is at liberty, and in fact is required, to sift and weigh the prosecution evidence meticulously to form an opinion about the veracity, truth and effect of the said evidence, so as to find out if it warrants conviction of the accused, if unrebutted. The Magistrate in that process may delve deep into the various aspects of the prosecution evidence and elaborately consider all the pros and cons so as to make a final assessment of the evidence. It was argued that warrant case procedure on private complaint is very elaborate and time consuming, and if only prima facie case test has to be applied even in a situation governed by Section 245(1), the procedure of recording evidence before charge needed to be done away with.

The above argument has to be rejected. The matter is covered by a direct ruling of the Supreme Court in R.S. Nayak Vs. A.R. Antulay and Another, That was a case where on a complaint made by one R.S. Nayak, complaining of offences under Prevention of Corruption Act and the Penal Code, a special case was being tried by a Single Judge of Bombay High Court acting as Special Judge against ex-Chief Minister of Maharashtra, A.R. Antulay. That case was being tried as a warrant case instituted on complaint. As many as 57 prosecution witnesses had been examined before charge in that case. The Special Judge acting u/s 245(1), Criminal Procedure Code, which is also the provision falling for consideration in the present case, framed 21 charges but refused to frame 22 remaining charges proposed by the prosecution and made an order of discharge in respect of those charges. That order of discharge was assailed by the complainant before the Supreme Court. In the above case, the Supreme Court observed:--

"The Code contemplates discharge of the accused by the Court of Session u/s 227 in case triable by it; cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on police report are dealt with in Section 245. The three sections contain somewhat different provisions in regard to discharge of the accused. u/s 227, the trial Judge is required to discharge the accused if he ''considers that there is not sufficient ground for proceeding against the accused''. Obligation to discharge the accused u/s 239 arises when "the Magistrate considers the charge against the accused to be groundless." The power to discharge is exercisable u/s 245(1) when "the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction..." It is a fact that Sections 227 and 239 provide for discharge being ordered before the recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the two parties to be heard. The stage for discharge u/s 245, on the other hand, is reached only after the evidence referred to in Section 244 has been taken. Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge u/s 245(1) is a preliminary one and the test of "prima facie" case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the trial Court is satisfied that a prima facie case is made out, charge has to be framed."

It will thus be seen that notwithstanding the difference in the language employed in Sections 227, 239 and 245 and the fact that evidence is not recorded in the first two situations, while it is recorded in the third situation, the test to be employed in all the three situations is one uniform test, namely, a prima facie case test. Applying that test, the Supreme Court in that case held that prima facie case had been established by the prosecution with respect to 19 more charges and allowing the appeal, it directed the Special Judge to frame charges under those heads as well.

The Supreme Court in that case also dwelt on the aspect that if prima facie case test has to be applied even in a situation given in Section 245(1), Criminal Procedure Code, the procedure in warrant cases on private complaints is too cumbersome and time consuming. The Supreme Court suggested for simplifying the procedure in such cases. The following observations of the Supreme Court in para 47 of the report of the case are pertinent:--

"The procedure in respect of trials according to warrant procedure in private complaints, however, continues to be cumbersome and time-taking and it is for Parliament to simplify the procedure for such cases keeping all aspects in view."

Even before Antulay''s case (supra), there was one more case Mahant Abhey Dass Vs. S. Gurdial Singh and Others, in which the Supreme Court in a warrant case instituted on complaint applied the prima facie case test.

The prima facie case test being identical in situations given in Sections 227, 239 and 245, Criminal Procedure Code, it is proper to notice here the true scope and meaning of that test as adumbrated by the Apex Court. It has been observed that the Court has power to sift and weigh the prosecution material or evidence, but that should be done for the limited purpose of finding out, whether or not a prima facie case has been made out against the accused. A Judge cannot act merely as a post office, but has to consider the broad probabilities of the case, the total effect of the evidence, the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving inquiry into the pros and cons of the matter. (See Union of India (UOI) Vs. Prafulla Kumar Samal and Another, The Court is not required at that stage to judge the truth, veracity and effect of the prosecution evidence. It is not obligatory for the Court at that stage, to consider in any detail and weigh in a sensitive balance whether the facts if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused, is not exactly to be applied at that stage. If there is a strong suspicion, which leads the Court to think that there is ground for presuming that the accused has committed an offence, then there is a case for framing of charge against the accused. If the scales of pan as to guilt or innocence of the accused are evenly balanced at the stage of consideration of charge, then in that situation, ordinarily and generally the order which will have to be made will be of charge and not of discharge. (See State of Bihar Vs. Ramesh Singh, The Court is required at the stage of consideration of charge to evaluate the material and documents on record with a view to finding out, if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. (See Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others,

Coming to the present case, the learned Chief Judicial Magistrate did not apply prima facie case test to decide the question whether the accused persons deserved to be charged or not. He went completely wrong in sifting and weighing the prosecution evidence before charge so meticulously, as if he were finally deciding the case. In that process, he came to a finding about the veracity, truth and effect of the prosecution evidence. The evidence whether ceremonies of marriage were performed was closely scrutinised and concluded finding given with regard to factum of marriages. It was lost sight of that the complainant has, as per her list, remaining witnesses for examination who might throw clear light on any doubtful point. The standard of test, proof and judgment which is applied at the final decision of the case was wrongly applied at the stage of consideration of charges. Applying a wrong test, the learned Chief Judicial Magistrate reached a perverse conclusion that the case was worth discharge. This was an illegality committed by the Chief Judicial Magistrate which resulted in obvious miscarriage of justice. The Additional Sessions Judge-by the impugned order had therefore rightly interfered with that order by setting it aside and directing further inquiry, although the Additional Sessions Judge should not have gone further to put any impediment on the judicial discretion to be exercised by the lower Court by making any direction, and particularly the direction with regard to the offence u/s 498A, Indian Penal Code, which is not an ex post facto penal provision. It is made clear that the learned Chief Judicial Magistrate, without being influenced by any observations of the Additional Sessions Judge in the impugned order or even the observations of this Court in this order, suggesting, if at all, even remotely that prima facie case was made out, consider afresh the question, if a prima facie case has been disclosed against the accused persons, and if so, against whom and for what offence.

There appears to be no ground to interfere with the impugned order of learned Additional Session Judge, dated 1-10-1990, except that the direction contained therein given to the Chief Judicial Magistrate with regard to offence u/s 498A, Indian Penal Code, is set aside. The record of criminal case No. 1113/84 (wrongly mentioned in the order of Chief Judicial Magistrate dated 24-12-1986 as Civil Suit No. 10/86) Rajkumari v. Surendra Kumar and Ors., shall be immediately sent back to C.J.M., Vidisha for further inquiry, after advertence to the observations with regard to law made hereinbefore by this Court.